Draft Council Directive concerning the status of third-country nationals who are long-term residents.

Legal base:

Articles 63 (3) and (4) EC; consultation; unanimity of participating Member States

Document originated:

13 March 2001

Forwarded to the Council:

25 April 2001

Deposited in Parliament:

4 May 2001

Department:

Home Office

Basis of consideration:

Minister's letter of 3 January 2002

Previous Committee Report:

HC 152-i (2001-02), paragraph 6 (18 July 2001)

To be discussed in Council:

No date set

Committee's assessment:

Legally and politically important

Committee's decision:

For debate in European Standing Committee B (together with the draft Directive on the conditions of entry and residence of third-country nationals for paid employment or self-employment)

Background

1.1 The conclusions of the Tampere European Council called
for third-country nationals holding long-term residence permits
in a Member State to be granted by that State "a set of uniform
rights which are as near as possible to those enjoyed by EU citizens"
(paragraph 12). The Directive has been drafted by the Commission
in response to that conclusion.

1.2 As the proposal's legal base falls within Title IV
of the EC Treaty, the UK had three months from its formal publication
in which to decide whether to opt in to the measure ( in accordance
with the provisions in the Protocol on the position of the United
Kingdom and Ireland annexed to the EC Treaty and the Treaty on
European Union). The UK has decided not to opt in to this measure.

1.3 When we considered this draft Directive in July,
we raised a number of questions with the Parliamentary Under-Secretary
of State at the Home Office (Angela Eagle) and kept the document
under scrutiny until we received her response. We noted that our
sister Committee in the House of Lords was undertaking a short
inquiry into the proposal. This has now been published.[1]

The Minister's letter

1.4 We asked the Minister about some of the issues raised
in submissions to the House of Lords. As a supplementary, we asked
whether there were other aspects of the measure where she considered
more consistency and clarity were needed.

1.5 As regards those excluded from the scope of the proposal,
the Minister explains that the Commission has formally presented
a proposal on subsidiary protection to the Council. (We have now
reported on this document[2].)

1.6 The second issue concerned the fact that the proposed
five-year residence requirement was out of step with shorter timescales
provided to Turkish nationals legally employed in the EU. The
Minister tells us:

"The proposal ... is without prejudice to more favourable
provisions in Community or mixed agreements that have been or
are to be concluded with third countries to govern the legal situation
of third-country nationals."

1.7 She provides a list of relevant agreements.

1.8 The third issue was concerned with equal rights for
family members of long-term residents. The Minister does not fully
address this issue (saying nothing, for instance, about the acquisition
of long-term residence for family members). However, she spells
out the rights granted in the draft Directive and points out that
the draft Directive on family reunification[3]
is also relevant here.

1.9 The Minister does not address our supplementary question.

1.10 In relation to the implications of the draft Directive
for the UK, we drew the Minister's attention to the potential
benefits to employers in relation to recruitment and transfer
of staff from other Member States, and asked whether she agreed
that there would be advantages for the UK in this fuller realisation
of the internal market. She replies:

"The Government is committed to ensuring that the United
Kingdom is competitive in the global economy. This includes ensuring
that our employers can obtain highly skilled staff from overseas
when required. That is why we have also introduced schemes such
as 'Innovators' which facilitates the movement of entrepreneurs
to the United Kingdom.

"An individual's decision to migrate to the United Kingdom,
or for that matter any other country, is highly complex and involves
many factors; any restrictions on movement throughout the European
Union will probably form a minor part of that decision. Economic
opportunity, family or community ties and the English language
are arguably far greater factors in choosing the United Kingdom
as a base in Europe.

"It is of course vitally important that third country nationals
legally resident in the United Kingdom are able to travel within
the Union, not only in relation to their jobs here, but also for
recreational and cultural purposes. So, we must ensure that our
colleagues in Europe have clear, transparent and quick visa procedures
to allow those residing in the United Kingdom to enter the Schengen
area.

"It should be noted that the Directive does not provide for
movement rights for those who are not long-term residents. Many
highly skilled individuals  such as those briefly seconded
to a multi-national's UK office  only spend a short time
in the United Kingdom as part of their global careers. They would
not be considered as long term residents and would not be able
to benefit from access to the single market as envisaged by this
Directive."

1.11 In view of the Government's decision not to opt
into the Directive, the Minister does not consider it necessary
to assess (as we had asked her to) whether there would be disadvantages
in moving from the status of Indefinite Leave to Remain (ILR)
to the proposed status of long-term resident. Similarly, in response
to our suggestion that a regulatory impact assessment would seem
a useful tool in helping the Government decide whether to opt
in to the measure, she tells us that one has not been completed
since the decision has been made.

1.12 We asked the Minister whether she believed that
the measure would have benefits for third country nationals who
were long-term residents in the UK. She confirms that, under the
Directive, such people would be able to stay in another Member
State for a period exceeding three months, but reminds us that
the Government has not decided not to opt in to the measure.

1.13 Finally, we asked the Minister to explain her concerns
about Article 4, and to give us her views on the appropriateness
of references to the Charter of Fundamental Rights. She replies:

"The Charter is a non-binding instrument, and cannot be said
to 'confer' rights. We do not understand the Commission to be
saying that the Charter itself confers rights, but at most that
it 'enshrines' rights conferred by other instruments. In any event,
we do not consider that Article 4 is a necessary or appropriate
provision to include in the Directive, for the following reasons.

"It should first be noted that Article 4 is not a free-standing
non-discrimination provision, but rather requires the Member States
to 'give effect to the provisions of this Directive without discrimination
[on various specified grounds]'. The principle of equality or
non-discrimination is already a general principle of Community
law and as such must be complied with by Member States in implementing
a Directive (see ECJ Case C-2/97 Societa Italiana Petroli v
Borsana, at paragraph 48). In that context, the intended effect
of Article 4 ... is unclear. We do not think that it is appropriate
to draw on the Charter in this way in framing substantive provisions
of a Directive as it leads to legal uncertainty both as to the
effect of the Directive and of the Charter itself."

1.14 The Minister tells us that she intends to raise
these points in discussion with other Member States on this and
related Commission proposals

.

Conclusion

1.15 We share the Minister's concerns about Article
4 and hope that she will be successful in persuading other Member
States to drop or amend it. We thank her for her other answers
which are obviously affected by the Government's decision not
to opt in to the draft Directive.

1.16 This is one of several proposals concerning third-country
nationals in which the Government has decided not to participate,
since they would have the effect of extending free movement rights
to third-country nationals. On this proposal, the Minister for
State for Asylum and Immigration (Lord Rooker) wrote in a letter
to Lord Brabazon of Tara (reproduced in the House of Lords report
on this document): "We believe that, whilst the proposed
Directive contains many provisions which are entirely consistent
with our policy on participation in EU immigration measures, giving
third-country nationals an enforceable right to enter the UK,
without any checks or safeguards, is not."

1.17 We have several questions about non-participation.

1.18 First, it is not clear to us how the Government
comes to its decision in these cases. In relation to the current
proposal, it did not undertake a regulatory impact assessment.
Nor does it appear to have consulted employers' organisations.
It would be helpful to know whether the decision is simply taken
within the Home Office, and, if not, what other bodies are involved.

1.19 Secondly, the nature and degree of the UK's involvement
in negotiations after its decision not to participate is also
not clear to us. In his letter, Lord Rooker states "we shall
continue to participate fully in discussion of the text".
Is this always the case and, if so, why? How much weight do other
Member States give to the views of non-participants?

1.20 More fundamentally, we wonder how possible it
is for the EU to have a coherent policy in this area when one
(or more) Member State opts out of significant measures. (We note,
in this context, the specific request of the European Economic
and Social Committee for the UK, Ireland and Denmark to implement
this draft Directive.[4]
)

1.21 We also wonder how the other Member States view
the UK's non-participation. As well as the question raised above
about the influence the UK can exert in the negotiation of these
draft Directives, there are wider issues to consider. For example,
we find it hard to believe that other Member States will be particularly
impressed by UK efforts to "ensure that our colleagues in
Europe have clear, transparent and quick visa procedures to allow
those residing in the United Kingdom to enter the Schengen area"
(see paragraph 1.10 above).

1.22 We recognise that the situation facing the Government
is not an easy one. We have commented before on the difficulties
in dealing with these Directives piecemeal without being able
to see the relationships between them[5].
Moreover, it may be (as suggested in our sister Committee's report[6]),
that the Commission has not taken the position of the UK and Ireland
sufficiently into account in the timing and drafting of these
measures.

1.23 The Government has consistently made it clear
that its commitment to the Tampere aim of fair treatment of third-country
nationals is conditional on the UK's ability to preserve its frontier
controls. Now that it has confirmed that position by deciding
not to participate in a number of draft Directives, it seems to
us timely for the issues we have raised about non-participation
to be debated.

1.24 We therefore recommend this document for debate
in European Standing Committee B, together with the Draft Directive
on the conditions of entry and residence of third-country nationals
for the purpose of paid employment and self-employed economic
activities on which we report in paragraph 3. We further recommend
that the draft Directive relating to the conditions in which
third-country nationals shall have the freedom to travel in the
territory of the Member States for periods not exceeding three
months, including a specific travel authorisation and determining
the conditions of entry and movement for periods not exceeding
three months[7]be tagged to the debate.